H1B Visa Process 2023: Everything you need to know!!

In this video, attorney Jacob Sapochnick tells you everything you need to know about the H-1B visa cap season for fiscal year 2024. We have been receiving questions from our followers regarding the application process and upcoming deadlines that applicants should be aware of.

In this post, we cover what the H-1B visa program is, why there is an annual cap on the number of H-1B visas available each year, and everything you need to know about the H-1B visa application process in 2023.

Overview

What is the H-1B Visa Program?

The H-1B visa is a nonimmigrant work visa that allows U.S. employers to hire foreign workers with specialized skills to work in the United States for a specific period of time. Generally, the job being offered by the U.S. employer must (1) require a bachelor’s degree or its equivalent (2) the degree should be common to the industry (3) and the duties required should be so specialized or complex that the knowledge required to perform them is usually associated with the attainment of a bachelor’s or its equivalent.

Professionals with job offers in the STEM fields (science, technology, engineering, and math) are the most common applicants for H-1B visas, although other fields may also qualify for the H-1B visa, such as finance, architecture, accounting, health, education, social sciences, physical sciences, medicine, among others.

Professionals who do not possess a bachelor’s degree or higher, but have at least 12 years of relevant experience, may still qualify for the H-1B visa without having a bachelor’s degree.

Once approved, an H-1B visa is valid for an initial period of 3 years and can be extended for an additional 3 years for a maximum period of 6 years in H-1B visa status. Thereafter, employers may sponsor workers for a green card.

Why is there a numerical cap on H-1B visas?

One of the drawbacks of the H-1B visa is that there is an annual numerical limit (cap) to the number of visas that can be issued each year. The annual cap for the H-1B visa program which has been set by Congress is 65,000 visas each fiscal year. An additional 20,000 petitions are set aside for beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization, are not subject to the H-1B numerical cap.

In order to select enough petitions to meet the H-1B numerical cap of 85,000 visas per fiscal year, the United States Citizenship and Immigration Services (USCIS) conducts a visa lottery, selecting from properly submitted electronic registrations to fill the cap.

Historically, competition for the H-1B visa is very strong. As an example, in FY 2022 U.S. employers submitted roughly 308,613 H-1B registrations, and by 2023 this figure increased to 483,927 registrations.

The Electronic Registration Process

In order to be part of the H-1B visa process, petitioners (U.S. employers) who are seeking authorization to employ H-1B workers subject to the cap, must complete an electronic registration process on their myUSCIS online account to receive a chance at selection. The registration process is simple and easy, requesting only basic information about the prospective petitioner and each requested worker.

USCIS first introduced the electronic registration process in 2020, when the agency announced it would be selecting applicants from electronic registrations submitted, instead of requiring petitioners to mail in paper applications.

As before, the H-1B fiscal year 2024 selection process will be based off properly submitted electronic registrations. Only those with selected registrations (lottery winners) will be eligible to file H-1B cap-subject petitions by mail.

The electronic registration period for the FY 2024 H-1B visa cap opened on March 1, 2023 and will close at noon Eastern Time on March 17, 2023.

Important Dates

H-1B FY 2024 Registration Process Timeline

March 1: H-1B registration period opened at noon ET.
March 17: H-1B registration period closes at noon ET.
March 31: Date by which USCIS intends to notify selected registrants.
April 1: The earliest date that FY 2024 H-1B cap-subject petitions may be filed.

How to Register

In order to submit an H-1B registration, prospective petitioners (aka employers) must first create a USCIS online account, complete the electronic registration, and pay the associated $10 H-1B registration fee on behalf of each worker. Employees CANNOT submit an electronic registration on their own behalf.

Prospective petitioners/employers (also known as registrants) must use a “registrant” account within myUSCIS to submit registrations. Registrants submitting their own registrations will enter their company information as part of their first H-1B registration. Registrants working with a representative (such as an attorney) will review company information that their representatives enter.

Please here for step-by-step instructions and more registration information.

As indicated above, electronic registrations for the H-1B FY 2024 cap must be submitted before noon ET on March 17, 2023.

IMPORTANT: U.S. employers, can only register one applicant per company. Multiple submissions from the same company on behalf of the same applicant are prohibited and will disqualify the petitioner from participating in the lottery.

However, a foreign worker may have multiple job offers from different U.S. employers. In this case, each distinct U.S. employer can submit an electronic registration for the worker. For instance, imagine that you have a job offer from Company A, Company B, and Company C. All three companies can file separate electronic registrations on your behalf.

If more than one of these registrations is selected in the H-1B lottery, you must choose which employer you want to work for.

Cap-Gap Extensions F-1 International Students

An F-1 student who is the beneficiary of a cap-subject H-1B petition, requesting for change of status that is filed on time, may have their F-1 status and any current employment authorization (such as OPT) extended until the first day of the new fiscal year. This is known as a “cap-gap” extension.

The “cap-gap” period starts when an F-1 student’s status and employment authorization expires and ends on October 1, 2023, the required start date of the H-1B cap-subject petition.

Can I Petition for a Prospective Employee Residing Overseas?

Yes, U.S. employers may register H-1B workers even if the worker is currently residing overseas. There is no requirement that the foreign national be inside of the United States during the registration and application process.

If selected, and approved by USCIS, such individuals can apply for their H-1B visa at their local U.S. Consulate or Embassy, and subsequently enter the United States to begin working for the U.S. employer.

Filing a Green Card During the H-1B Registration Process

Many employers have asked whether filing an employment-based green card on behalf of a foreign worker during the H-1B registration process, will decrease their chances of approval or have a negative impact on the H-1B visa process.

Fortunately, no. The H-1B visa is one of the few visa categories that recognizes dual intent, meaning that an applicant can have the intent to immigrate to the United States, and file for permanent residence. The employment-based green card process can take place during or even after the H-1B application selection process.

Contact us. If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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